An Empirical Analysis of § 1983 Qualified Immunity Actions and Implications of Pearson v. Callahan

Greg Sobolski & Matt Steinberg

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The Supreme Court’s recent decision in Pearson v. Callahan marked a turning point in a judicial experiment concerning § 1983 constitutional litigation, which began in 2001 with Saucier v. Katz. The experiment involved the doctrine of qualified immunity, an immunity from suit extended to state and local government officials (and to federal officials in Bivens actions) in § 1983 actions for monetary relief where it would not be “clear to a reasonable officer that his conduct was unlawful in the situation he confronted.”1

A court deciding a § 1983 action in which the defendant pleads qualified immunity faces two possible questions: (1) whether a constitutional right of the plaintiff was violated; and (2) whether that right was “clearly established” at the time the conduct occurred. If the court answers the first question “no,” the defendant prevails because the plaintiff has failed to successfully allege a constitutional violation. If the court answers the second question “no,” the defendant is entitled to qualified immunity, barring the plaintiff’s recovery. The question at the heart of the line of cases leading to Pearson is whether a court must confront the constitutional question regardless of the outcome of the “clearly established” qualified immunity prong, or whether a court may skip the substantive constitutional issue altogether when the answer to the “clearly established” prong supports granting qualified immunity.

The stakes are high because the difference between mandatory or discretionary sequencing may bear on the frequency with which courts address substantive constitutional rights questions, which in turn impacts the “rate” at which constitutional rights are “clearly established” through precedents. While the Supreme Court’s jurisprudence has spanned the spectrum from providing no guidance about sequencing, to suggesting it, to requiring it, and, after Pearson, again only suggesting it, there have been until recently no empirical studies that examined the relationship between the Supreme Court’s position on the qualified immunity sequencing issue and the behavior of lower courts resolving § 1983 claims.

Our Note examines a random sample of 741 appellate qualified immunity cases, representing 901 § 1983 claims, drawn from thirty-two years of qualified immunity jurisprudence (1976-2008). Ours is the largest data set constructed on the topic to date.

Thus far, the scholarship has generally divided the evolution of qualified immunity doctrine into three doctrinal periods. In the first period, the Supreme Court issued little guidance to lower courts on sequencing. In the second period, beginning after the Court’s decision in Siegert v. Gilley, the Court encouraged confrontation of the constitutional question before the “clearly established” question. That approach is typically thought to have lasted until the Court’s Saucier decision in 2001, which mandated that the constitutional rights question be answered first. Saucier’s requirement represented a high water mark in the Court’s efforts to create a uniform and obligatory procedure for all courts to adjudicate § 1983 actions. But Saucier became the target of criticism, sparking a debate (“the sequencing debate”) in academia and the judiciary about the virtues of mandatory sequencing. Finally, the fourth period was ushered in with the Court’s latest qualified immunity decision, Pearson v. Callahan.

The key question our empirical analysis set out to address was how mandatory sequencing affects constitutional articulation—the judicial process of confronting and resolving substantive constitutional questions—and thereby affects the judiciary’s understanding of what sets of facts and conduct represent rights violations. Although the Saucier Court insisted that sequencing was central to providing explanations about the “law’s elaboration from case to case,”2 there has been little dispute and, until recently, little empirical research on the relationship between mandatory sequencing and constitutional articulation as it is borne out in the courts.

How lower courts have approached sequencing during three phases of Supreme Court guidance was the subject of only one empirical study prior to 2009. That study, authored by Professor Thomas Healy in 2005, is of limited use to understand the impact of the evolution of qualified immunity doctrine on the behavior of lower courts because it examined only a small set of appellate decisions issued after the Saucier opinion. Two contemporary quantitative studies of qualified immunity were published in 2009. In one, Paul Hughes sampled appellate dispositions during three discrete time intervals falling within the three doctrinal periods, and documented the expected finding that the shift to mandatory sequencing corresponded to a decrease in the frequency with which appellate courts skipped the substantive constitutional question. In a subsequent study, Nancy Leong sampled appellate and district court opinions from three discrete time intervals and concluded that Saucier has increased the quantity of constitutional articulation, but at the expense of constraining plaintiffs’ constitutional rights.

Echoing some of the same sentiments as Hughes and Leong, our study also provides evidence that although a mandatory sequencing regime may disadvantage plaintiffs bringing § 1983 actions, it may also have a generally rights-affirming effect, thereby benefiting potential future plaintiffs bringing similar § 1983 claims. Our analysis shows that: (1) the imposition of Saucier’s mandatory sequencing regime was associated with a decreased frequency of outcomes where a court granted qualified immunity without addressing the substantive constitutional question; (2) after Saucier, there was an increase in the frequency of outcomes where a court denied a constitutional violation, but that change was not statistically significant; (3) after Saucier, there was a statistically significant increase in the frequency of outcomes where a court found the plaintiff had successfully alleged a constitutional violation; but (4) in the pre-Saucier period, plaintiffs found by a court to have successfully alleged a constitutional violation were more likely (by eleven percent) to ultimately recover damages than their counterparts after Saucier, also a statistically significant observation.

In sum, our data suggests that Saucier was not necessarily a seismic moment at which the mandatory period began among appellate courts. Rather, there is quantitative and qualitative evidence that appellate courts considered themselves bound to sequence even before the Saucier decision. In other words, Saucier is not a clean proxy for the point at which appellate courts suddenly begin perfect compliance with sequencing requirements, and this is important for the empirical study of qualified immunity because it suggests a new timeline along which to study lower court behavior in relation to Supreme Court decisions.

Thus, it is our contention that Pearson should be cast as the start of a new period in the sequencing debate, rather than as a reversion to the status quo ante Saucier. After Pearson, lower courts should understand without ambiguity that they have discretion in the handling of the key questions in § 1983 qualified immunity actions. How courts will employ that discretion is not a matter that may be bounded or predicted on the basis of past behavior. The post-Pearson period will represent, at last, a period in which courts may unambiguously understand themselves to have discretion in the disposition of § 1983 qualified immunity actions, and, therefore, will be an ideal period to continue an empirical analysis of how discretionary sequencing influences the articulation and refinement of constitutional rights in the § 1983 context.


Copyright © 2010 Stanford Law Review.

Greg Sobolski and Matt Steinberg are 2009 graduates of Stanford Law School.

This Legal Workshop Editorial is based on the following Law Review Article: Greg Sobolski & Matt Steinberg, Note, An Empirical Analysis of § 1983 Qualified Immunity Actions and Implications of Pearson v. Callahan, 62 STAN L. REV. 523 (2010).

  1. Saucier, 533 U.S. 194, 202 (2001).
  2. 533 U.S. at 201.

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